The elephant in the room

The elephant in the room
January 2017
By Emily Donovan
Chicago Lawyer correspondent

One morning in December, John P. Scanlon and Matthew M. Gannon of Healy Scanlon Law Firm got a call.

An expert witness in a personal-injury case they were arguing had been reviewing the relevant medical records a few days earlier in preparation for testimony. While going through the massive file — it was 30 inches tall when stacked — he reconsidered an opinion he had when he gave his deposition.

It wasn’t just any opinion. It was the key medical detail Scanlon and Gannon had built their case around. The plaintiff’s attorneys were finding out about the revised opinion just hours before the doctor was scheduled to testify.

“It made for a very interesting morning,” Gannon said.

The case offered something rare from an expert witness: a surprise. Expert testimony can make or break a case, especially in medical malpractice, so the processes are smooth and well-honed. The medical community provides ethical and professional guidelines for the witnesses, and legal practitioners have polished their tips and tricks to finding, vetting and handling an expert witness.

But even the smoothest processes have bumps, and lawyers and doctors have to find ways to work together when justice hinges on science.

“We’re not entirely popular in the medical profession,” said personal-injury lawyer Bruce Pfaff, a shareholder at Pfaff Gill & Ports. “We tend to be popular with the clients, and that’s more important.”

‘The inguinal ligament was our whole case’

Scanlon and Gannon’s case, Gregory Smith v. Peter Stecy, was about a woman, Opal Smith, who received an angiogram and angioplasty in 2011 at age 69. Within four hours of being transferred to another floor to recover, the woman lost a fifth of her blood.

The blood loss caused the woman’s pH levels to go down so far she suffered a toxic brain injury, Scanlon and Gannon said. The blood loss also caused a hypoxic brain injury and, they said, caused a stroke that left the left side of her body partially weak. Scanlon said she can’t remember much and was never able to return to work.

The woman’s son, Gregory, sued on her behalf.

A doctor who performed an emergency surgery to stop the bleeding noticed the seal closing the angiogram puncture had detached. There are a few reasons this could have happened, one of which involves a band of connective tissue running across the groin. It’s called the inguinal ligament.

Standard procedure requires doctors doing an angiogram or angioplasty to enter the femoral artery below the inguinal ligament. If they puncture at or above the ligament, the curve of the artery makes it hard to seal the puncture.

Expert witnesses the plaintiff’s attorneys retained said Stecy must have punctured the artery above the inguinal ligament. Expert witnesses the defense retained said the puncture was in the proper spot.

Kevin Halstuk, a vascular surgeon in the Chicago area, had been retained by a third party that was no longer part of the case. His deposition mostly focused on standards of care, but he also said, among other things, that he believed the puncture was more likely than not a few millimeters above the ligament.

Scanlon was thrilled, he said. He and Gannon subpoenaed Halstuk to say so again in court. The defense counsel also called him as a witness for another topic.

Re-reviewing the 30-inch stack of records a few days before he was scheduled to testify, Halstuk reconsidered his initial conclusion.

Based on the description of the location of the pledget that closed the angiogram puncture in the operative report from the doctor who went in to stop the bleeding, Halstuk now concluded the puncture must have been below the inguinal ligament.

“Above or below the inguinal ligament was our whole case,” Gannon said.

During examination a few hours later, strategy now retooled, Scanlon questioned Halstuk about the timeline of what he called the “enlightened moment” when the doctor decided to revise his opinion.

“I don’t know that it was enlightened,” Halstuk responded, “but it was a factual moment.”

‘I never testify for plaintiffs’

As he had been retained by a third party, Halstuk as an expert witness fell into Scanlon and Gannon’s laps.

More commonly, attorneys say they use recommendations, the internet and the occasional referral company to find their experts.

Jeffrey Singer, a shareholder at Segal McCambridge Singer & Mahoney who does defense work, said he finds experts through corporate and opinion-leader clients and by researching who opinion leaders are in the field. Pfaff said he has used the internet for this research in his cases. He said you can enter searches like “robotic-assisted hysterectomies complications” on Google Scholar to find who has published what.

Singer said he gets tons of e-mails, brochures and mailings advertising expert witnesses and referral companies. They find their way quickly to the trash. Experts who use those companies to advertise their services generally might not have the reputation to do the expert work on their own, Singer said.

However, Pfaff said he has used an expert referral company to help him find experts in particularly niche engineering fields that he may not have enough connections in on his own.

David R. Barry Jr., a partner at Corboy & Demetrio, said he has deposed really strong experts that the other side found through referral companies. The fact that people advertised their ability to testify doesn’t in and of itself mean they’re not good expert witnesses, he said.

The American Medical Association’s Code of Medical Ethics says doctors, as citizens and professionals with specialized knowledge and experience, have an obligation to assist in the administration of justice.

But Barry, who was a defense attorney for more than 20 years before switching to the plaintiff’s side, said it’s harder for the medical-malpractice plaintiff to find experts willing to testify.

“Politically, there’s a lot of pressure brought to bear on them not to testify against other doctors,” he said.

Pfaff said there are some specialties where it’s almost impossible to find an expert willing to testify for the plaintiff. For example, there are only so many pediatric neurosurgeons in the country.

“They all trained each other, they all know each other and the idea that one of them would get up in court and say that someone in another institution that they know pretty well caused someone’s paralysis or death — it’s very hard to do,” Pfaff said.

For an upcoming case in a niche specialization, Pfaff said he called 50 doctors and only two agreed to even review the case. Those experts who declined would charge $500 or more to review, he said, so it’s not like you’re asking them to do it for free.

The Code of Medical Ethics says doctors must not allow their testimony to be influenced by financial compensation. It also says doctors must not accept compensation that is contingent on litigation’s outcome. That’s why law firms pay doctors to review the case regardless of whether the doctor is going to agree with the opponent’s side.

Pfaff said one of the doctors he called said, “Holy cow, that’s horrible care. Wow. That’s really bad. I’ll never testify for you because I never testify for plaintiffs, and no one in my field testifies for plaintiffs, but boy, that’s horrible care.”

That’s the most difficulty Pfaff said he has had finding an expert to retain in his 37 years of practice. The next most difficult was a case where only two of the 11 pediatric neurosurgeons he contacted agreed to review.

Halstuk said he has testified about 50-50 for plaintiffs and defendants in his eight years of expert witness work. He testified that he has turned down at least one previous case from the defense counsel in Smith v. Stecy when he couldn’t agree with the defense’s position.

“I just go by the facts,” he said.

However, the surgeon’s relationships within the medical community became an opportunity for Scanlon and Gannon to discredit Halstuk’s newer testimony.

Throughout the trial, Scanlon and Gannon emphasized how each of the defense’s experts worked in the Chicago area and knew each other, Scanlon said. Halstuk had been retained by the defense’s attorney in previous cases and knew the doctor who performed the emergency surgery, who in turn used to be in the same practice group as the defendant.

“They do tend to circle the wagons,” Scanlon said. “Our two experts were out of state for that same reason. We knew we couldn’t find anybody local.”

‘Research your expert just like your opponent will’

Once your find your witness, you have to look for weaknesses your opponent could exploit.

Cook County Circuit Judge Edward Washington II, assigned to the court’s Law Division, said trial lawyers have to evaluate what type of communicator their expert is. He recommends finding and reading past testimonies the expert has given to get an idea of what they’ll be like on the stand.

Barry said he’ll ask an expert if they’ve testified for anyone in Chicago or around the country before. He’ll then call up the attorneys who were involved in those trials to ask for their opinions of the expert.

Singer said he looks for experts who not only know the science but are able to communicate it to 12 jurors who don’t.

“If I can understand it, that’s the No. 1 thing,” he said.

Pfaff said he thinks credibility is more important than presentation. He once retained an expert he could tell over the phone was straightforward and nice. When they met in person, Pfaff realized his expert had an involuntary physical tic that moved his head. That’s something that could have distracted jurors or made them think the expert was behaving suspiciously. He decided to go ahead with the witness anyway.

At trial, Pfaff asked the expert about the involuntary tic at the beginning of his testimony so the jury would know what was going on.

“He was a very credible guy and we won,” Pfaff said.

But credibility comes from the truth, even if it’s not what the lawyer wants to hear.

Barry said some experts think you won’t call them again if they don’t agree with your side. When he calls up an expert, he makes a point of saying, “I want to know what you really think.”

He said all the good experts are intellectually invested in the case, as opposed to emotionally invested. It’s the emotionally invested people who will make “wide turns” to support a client, stretching the facts to help a side they want to win, he said.

Pfaff said he avoids what he calls “top sheeters” — experts who just read the top sheet summary that is slanted in favor of their side.

Pfaff said he likes experts who will account for all the facts, even the ones that may lay outside of or conflict with their theory. He said some experts ignore the bad facts entirely, pretending they don’t exist, to build an argument in support of their side. Those experts look like they were being misleading when the opposing counsel points out small facts that poke holes in their theory.

Washington has seen how those cases play out in a courtroom.

“Sometimes they’re dying of a thousand cuts and they don’t realize it,” Washington said. “I realize it.”

Washington also recommends checking the expert’s social media and internet presence.

He once saw a case where the attorney who had retained an oncologist didn’t seem aware the oncologist’s online advertisements said he challenges traditional medicine. During cross-examination, the oncologist said he had maintained that attitude since he was a rebellious student activist in college. It made it look like the oncologist was someone who would always have a contradicting opinion.

“You have to research your expert just like your opponent will,” Washington said.

‘That does me no good if you’re not right’

In Smith v. Stecy, the plaintiff’s attorneys subpoenaed Halstuk to be an expert witness and did not otherwise communicate with him before he came to court. The defense attorney did.

“[A]fter receiving that subpoena asking you to appear here for trial, have you had any conversations with Mark Smith?” Scanlon asked Halstuk in his direct examination.

Mark J. Smith, partner at Smith Blake Hill, and associate Gretchen Powell represented Stecy. Halstuk said he met with Smith a few weeks before trial and Smith called him the night before he was scheduled to testify.

During that call, Halstuk told the defense attorney he now thought the puncture was below the inguinal ligament.

Scanlon and Gannon found out the next morning. A few hours later, Scanlon was examining the doctor, focusing his questions on the timeline of those conversations.

The conflict in Smith v. Stecy came from the doctor saying what the lawyers didn’t want to hear. But a doctor saying exactly what will help a case can also be damaging, not only for the case but for the lawyers’ careers.

Years ago, Pfaff had an expert say he saw the opposing counsel’s point but was willing to stick with his testimony.

“Wait a minute,” Pfaff had to tell the expert. “That does me no good if you’re not right.”

Back when he worked defense cases, Barry told an expert he retained it would be helpful if he could establish three points: A, B and C. Barry said the expert told him during preparation that A, B and C weren’t correct.

But then the plaintiff’s attorney was particularly rude to the expert during the deposition, Barry said. Lo and behold, the expert says A, B and C.

Barry knew it would be perjury if he put that expert on the witness stand. He said he kept his mouth shut during the deposition, and the case ended up settling before going to trial.

The Code of Medical Ethics is not a list of laws, but it does call on state and specialty societies and medical licensing boards to assess claims of false or misleading testimony and issue disciplinary sanctions as appropriate.

The Illinois State Medical Society doesn’t review expert witness testimony, but some medical specialty groups do.

As the American College of Legal Medicine’s guidelines on the ethical conduct of the expert witness point out, it can be difficult to distinguish between a lie and what a doctor might genuinely believe is the truth.

Or what a doctor once believed was the truth.

The operative report from the doctor who stopped Opal Smith’s bleeding said the doctor put his finger on the hole to control the bleeding before they could stop it with a clamp. Halstuk missed that reference in the 30 inches of paperwork before deposition because his deposition related to standard of care, not pinpointing the location of the bleed, he said.

“And basically not having read that op report in preparation for the deposition is why I gave the opinion, and basically that opinion is wrong,” Halstuk said during examination.

The doctor would not have been able to stop the bleed with his finger if the puncture had been above the ligament, Halstuk testified. The doctor’s finger couldn’t have reached there. He would have had to reach through the ligament. He wouldn’t have even been able to see the pledget from the seal, but the operative report said the doctor saw it immediately.

Despite this testimony, after nearly seven hours of deliberation on Dec. 14, a Cook County jury awarded Opal Smith’s estate $4.5 million.

Mark Smith said he is working on a post-trial motion unrelated to Halstuk’s testimony and declined to comment on the case.

Gannon said the plaintiff’s attorneys polled three jurors after the trial. He said the jurors told him the fact that all the defense’s experts were local and knew each other was a big factor in their analysis, and that the plaintiff’s two expert witnesses brought in from Arizona and California indicated they weren’t worrying about protecting the doctors in the Chicago professional community.

Two expert witnesses had testified that the angiogram puncture was too high. Four, including Halstuk, said it wasn’t.